Morals, Markets and Lawyers

Theorists of commercial (or what we now call capitalist market) societies since Adam Smith have supposed that the successful functioning of such societies essentially depends upon an infrastructure of moral, social, and political-institutional orders and dispositions located outside markets and usually not considered to be proper objects of commercial exchange. The most optimistic view of commercial society (doux commerce) is that it is self-sustaining, that the expansion of commerce can in and by itself serve as the civilizing influence producing the cultural conditions necessary for its survival and growth.

But a darker thesis is that commercial societies tend over time to erode the very supporting orders and character traits upon which they depend. The relatively unfamiliar ingredient Professor Gordon will stir into this old controversy is views of how law and lawyers could help to palliate the pathologies to which commercial societies are thought to be prone. In the early American republic, a group of influential lawyers, responding to contemporary concerns over the self-destructive pathologies of commercial republics, proposed ambitious roles for their own profession as the cure. Yet repeatedly thereafter, the profession’s experiences furnished grounds for serious concern that law and lawyers might have worsened the very pathologies of commercial republics that they had claimed to be able to cure. Is there a way out? And could lawyers help show the way?

Robert W. Gordon is a preeminent legal historian, prolific scholar, and gifted teacher. His expertise in American legal history, evidence, the legal profession, and law and globalization spans four decades, and his influence on generations of lawyers and legal scholars is profound. He has written extensively on contract law, legal philosophy, and the history and current ethics and practices of the American legal profession. He is known for his key works, The Legacy of Oliver Wendell Holmes, Jr. (1992) and “Critical Legal Histories” (1994), which is included in a forthcoming volume of his essays, Taming the Dragon: Law in History and History in Law, whose publication is expected later this year.

Professor Gordon received his A.B. from Harvard University and his J.D. from Harvard Law School. Before going to law school, he worked as a newspaper reporter and served in the U.S. Army. Following law school, he served in the Office of the Attorney General of Massachusetts. Gordon has been a professor at Stanford Law School since 2011; he taught previously at Stanford from 1983 to 1995. He is the Chancellor Kent Professor Emeritus of Law and Legal History at Yale Law School, and also taught at the University of Buffalo Law School SUNY and the University of Wisconsin. He has been a visiting professor at Harvard University, Oxford University, the University of Toronto, and the European University Institute.